Court File No. 31598
Criminal law — Powers of search and seizure — Search — Scope of power — Warrantless searches — Appeal by Kang-Brown from the decision of the Alberta Court of Appeal to dismiss his appeal from his conviction allowed — Trial judge ruled that appellant was not unlawfully searched when RCMP officer used sniffer dog to detect the presence of drugs — Appellant claimed that his rights against unreasonable search and seizure were breached, contrary to s. 8 of the Charter of Rights and Freedoms — It was undisputed that the police had no reasonable and probable grounds to believe that the appellant had drugs in his possession — Absent justified authority for such a search in a statute or at common law, s. 8 was breached.
Criminal law — Constitutional issues — Canadian Charter of Rights and Freedoms — Legal rights — Protection against unreasonable search and seizure — Remedies for denial of rights — Specific remedies — Exclusion of evidence — Appeal by Kang-Brown from the decision of the Alberta Court of Appeal to dismiss his appeal from his conviction allowed — Trial judge ruled that appellant was not unlawfully searched when RCMP officer used sniffer dog to detect the presence of drugs — Appellant claimed that his rights against unreasonable search and seizure were breached, contrary to s. 8 of the Charter of Rights and Freedoms — It was undisputed that the police had no reasonable and probable grounds to believe that the appellant had drugs in his possession — Absent justified authority for such a search in a statute or at common law, s. 8 was breached.
Appeal by Kang-Brown from the decision of the Alberta Court of Appeal to dismiss his appeal from his conviction, where the trial judge had ruled that he was not unlawfully searched. An RCMP officer was monitoring a bus station as part of an operation to identify and arrest drug couriers. The officer noticed the appellant getting off a bus and observed suspicious behaviour by the appellant. The officer started a conversation with the appellant and identified himself as a police officer. The appellant seemed nervous and the officer called to the police dog. The police dog indicated the presence of drugs and the appellant was charged with possession of cocaine for the purposes of trafficking and possession of heroin. The appellant alleged that his s. 8 Charter rights were breached when the sniffer dog was used to detect drugs. The trial judge ruled that odour was a voluntary exposure of information, and no person could have a reasonable expectation of privacy in what they knowingly expose to the public. As a result, the trial judge found that s. 8 of the Charter was not engaged. The Court of Appeal upheld the conviction.
HELD: Appeal allowed. The dog sniff of the passenger's bag at the bus station amounted to a search under s. 8 of the Charter. There was no authority in statute or common law for the sniffer dog search. It was undisputed that the police had no reasonable and probable grounds to believe that the appellant had drugs in his possession or that he had committed any other offence at the time he was accosted and the search by sniffer dog occurred. Absent justified authority for such a search in a statute or at common law, s. 8 was breached. The appeal involved the issue of the role of the courts in respect of common law police powers. However, any gap in the law was best left for Parliament to resolve. The court noted that the protection of privacy interests rests on the constraints, like the requirements of prior authorization and reasonableness, imposed on those conducting searches and seizures by the wording of s. 8 and by the courts in applying that section. A downgrading of the standard of reasonable and probable cause to a standard of reasonable suspicion might lead to an even looser test of generalized suspicion, and would impair important safeguards found in s. 8 against unjustified state intrusion. The evidence should be excluded pursuant to s. 24(2) of the Charter.
